RHONDA BURG (HARMAN) v. FREDERICK BURG

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6335-04T36335-04T3

RHONDA BURG (HARMAN),

Plaintiff-Respondent,

v.

FREDERICK BURG,

Defendant-Appellant.

___________________________________

 

Submitted October 4, 2006 - Decided November 14, 2006

Before Judges Graves and Lihotz.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FM-13-1982-89C.

Apicelli & Costanzo, attorneys for appellant (Nicholas C. Apicelli, on the brief).

Keith, Winters & Wenning, attorneys for respondent (Brian D. Winters, on the brief).

PER CURIAM

Defendant Fredrick Burg appeals from the denial of his request for reconsideration of an order entered in the Family Part on May 9, 2005. In that order, the motion judge denied defendant's request, (1) for reimbursement of an alleged overpayment of child support after one of the parties' two children was determined to be emancipated, (2) fixed the effective date of a modified child support obligation for the unemancipated child on a date other than the date defendant filed his motion, (3) denied the request to reduce the life insurance benefit securing future child support, and (4) denied the request to require plaintiff to contribute to the cost of medical insurance for the parties' unemancipated son. We affirm.

The parties were divorced on March 28, 1991. The final judgment of divorce required defendant to pay child support, continue life insurance coverage to secure that support obligation, and maintain the medical insurance coverage provided through his employment for the benefit of the parties' twins, Scott and Elyssa, born on November 1, 1980.

Several post-judgment motions were filed, including defendant's request to emancipate the children, who each were enrolled in a graduate school program. The facts surrounding that application are detailed in our prior decision, Burg v. Burg, No. A-1652-03T3 (App. Div. January 25, 2005). We determined the record supported the Family Part judge's finding that Elyssa remained unemancipated and we remanded the matter to the Family Part for further proceedings consistent with Newburg v. Arrigo, 88 N.J. 529 (1982), and N.J.S.A. 2A:34-23, to determine whether a change in Elyssa's level of support was warranted. Also, we determined defendant could discontinue the medical insurance for Elyssa, as she had alternative coverage.

No plenary hearing was scheduled. Defendant thereafter filed a second motion seeking Elyssa's emancipation, retroactive to June 17, 2003; reimbursement of all overpayments for support and insurances made for Elyssa from the date of emancipation to the motion filing date; a decrease in the child support obligation for Scott due to a change in circumstance; a decrease of the death benefit of the life insurance policy maintained to secure Scott's support; and contribution by plaintiff for the cost of Scott's medical insurance. Plaintiff opposed the motion and filed a cross-motion, seeking the continued maintenance of Scott's medical insurance paid solely by defendant.

The court reviewed the motions on the papers, R. 1:6-2(b), ruling in a May 9, 2005 order that Elyssa was emancipated as of August 6, 2003, which also terminated defendant's obligation to maintain life insurance and to provide Elyssa with medical insurance coverage. The court additionally denied defendant's request for reimbursement of any alleged overpayment of child support for Elyssa relating back to August 6, 2003, along with medical and life insurance premiums paid for her.

In his statement of reasons, the motion judge denied the request for reimbursement, stating; "[o]verpayment of child support cannot be awarded as defendant's child support obligation was $312 per week unallocated for both children and there being no proof of said expenses, the [c]ourt cannot order reimbursement of the same." The insurance premium reimbursements were also denied as defendant failed to sustain the requisite proofs.

As to Scott, the court reduced support and fixed the effective date of the modification as May 9, 2005, not March 15, 2005, the motion's filing date. Although the court denied defendant's request to reduce the life insurance death benefit that secured the child support obligation for Scott, it granted defendant's application to limit Scott's recovery, in the event of defendant's untimely death, to an amount sufficient to meet the modified child support obligation. The court also ordered the continued maintenance of Scott's medical insurance coverage, paid solely by defendant.

Defendant moved for reconsideration on May 25, 2005, which plaintiff opposed. Following oral argument, defendant's motion for reconsideration was denied. See Michel v. Michel, 210 N.J. Super. 218, 223 (Ch. Div. 1985) (reconsideration is not available when "the sole basis of the motion is apparent disagreement with the substantive result reached by the court").

On appeal, neither party challenges the motion judge's finding that Elyssa was emancipated as of August 6, 2003. Defendant asserts the court erred because it did not give him the benefit of Elyssa's emancipation by reducing the $312 per week child support obligation. Defendant argues for reversal because he asserts the basis of the motion judge's denial of the reimbursement request rested on an erroneous conclusion that the use of the term "unallocated" in the existing order prohibited a downward modification. Defendant also seeks adjustments in the effective date of the modified support amount for Scott and the level of life insurance benefits maintained to secure Scott's support. He also seeks to compel plaintiff to contribute to Scott's medical insurance costs.

Because of the Family Part's special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding whenever supported by adequate, substantial and credible evidence. Cesare v. Cesare, 154 N.J. 394, 413 (1998); Rova Farms Resort v. Investors Insurance Co., Inc., 65 N.J. 474, 483-84 (1974). Where our review addresses questions of law, however, we are not bound to defer to the legal conclusions of the lower court. See Balamides v. Protameen Chems., Inc., 160 N.J. 352, 372 (1999) (stating "matters of law are subject to de novo review").

Child support orders are always modifiable upon establishment of a substantial change in financial circumstances. Lepis v. Lepis, 83 N.J. 139, 146 (1980). Most child support orders do not allocate specific amounts of support for each child, but instead provide a total weekly obligation due by the obligor for all children addressed in the order. See Child Support Guidelines, Pressler, Current New Jersey Court Rules, Appendix IXA to R. 5:6A at 2217 (2007). This principle equally applies to an order not calculated under the guidelines, providing for unallocated support. Farmilette v. Farmilette, 237 N.J. Super. 29, 31 (Ch. Div. 1989). A modification of the amount of support when one child becomes emancipated does not constitute a retroactive modification of child support prohibited by N.J.S.A. 2A:17-56.23a. Ibid; see Mallamo v. Mallamo, 280 N.J. Super. 8, 17 (App. Div. 1995).

The phrase "unallocated support" most often refers to a support award which benefits a dependent spouse and the unemancipated children. In the context of this matter, it refers to the defendant's need to continue the existing child support obligation without diminution because a modification in the support amount can only be made after an analysis of the factors set forth in N.J.S.A. 2A:34-23a. These include:

(1) Needs of the child;
(2) Standard of living and economic circumstances of each parent;
(3) All sources of income and assets of each parent;
(4) Earning ability of each parent, including educational background, training, employment skills, work experience, custodial responsibility for children, including the cost of providing child care and the length of time and cost of each parent to obtain training or experience for appropriate employment;
(5) Need and capacity of the child for education, including higher education;
(6) Age and health of the child and each parent;
(7) Income, assets and earning ability of the child;
(8) Responsibility of the parents for the court-ordered support of others;
(9) Reasonable debts and liabilities of each child and parent; and
(10) Any other factors the court may deem relevant.

[N.J.S.A. 2A:34-23.]

Defendant sought a downward modification of the child support award. He was, therefore, obligated to provide updated financial disclosures prior to the entry of any order reducing that support. R. 5:5-4(a). Defendant briefly mentioned his employment situation in his March 15, 2005 certification, filed in support of his motion, yet, he failed to include his case information statement or documentation of his current income and assets. This hindered the motion judge's ability to assess whether and to what extent child support could or should be modified after Elyssa's emancipation. See Harrington v. Harrington, 281 N.J. Super. 39, 47-48 (App. Div. 1995); Gulya v. Gulya, 251 N.J. Super. 250, 253, (App. Div. 1991); and Zazzo v. Zazzo, 245 N.J. Super. 124, 132 (App. Div. 1990), certif. denied, 126 N.J. 321 (1991).

During argument on reconsideration, the motion judge identified the dilemma presented by defendant's failure to provide the requisite evidence to discern whether the current order required downward modification, as follows:

THE COURT: Isn't that the standards? When child support is unallocated, that means that it's not specific to one [or] the other. It would seem that it would be some diminution, but not necessarily so.

. . . .

THE COURT: An application should have been made at the time . . . to indicate that there has been a Lepis change of circumstances . . . . [If the] father . . . had just won the lottery . . . then he would have $1 million and that would not have been fair either.

Without the requisite proofs, the court was unable to evaluate the appropriateness of defendant's request for relief. Zazzo, supra, 245 N.J. Super. at 129. Thus, the present record supports the Family Part judge's determination that defendant failed to sustain his burden establishing he was entitled to reimbursement of alleged overpaid child support. Gulya, supra, 251 N.J. Super. at 253-54.

The remaining issues raised by defendant's appeal challenge the motion judge's exercise of discretion. We will not disturb the trial court's exercise of discretion unless it is "so wholly unsupportable as to result in a denial of justice." Gillman v. Bally's Mfg. Corp., 286 N.J. Super. 523, 528 (App. Div.) certif. denied, 144 N.J. 174 (1996) (quoting Goodyear Tire and Rubber Co. v. Kin Prop., Inc., 290 N.J. Super. 96, 106 (App. Div.), certif. denied, 139 N.J. 290 (1984)). We discern no misapplication of discretion, as the motion judge articulated sufficient reasons grounded on adequate and substantial evidence of record, and, thus, no denial of justice occurred. Gittleman v. Cent. Jersey Bank & Trust Co., 103 N.J. Super. 175, 179 (App. Div. 1967), rev'd on other grounds, 52 N.J. 503 (1968).

Affirmed.

 

In his statement of reasons issued on October 19, 2005, the motion judge recites as Elyssa's date of emancipation both August 6, 2003 and December 6, 2003. The order fixes August 6, 2003 as the emancipation date.

On October 19, 2005 the motion judge set forth his statement of reasons for the determinations made in the May 9, 2005 order. R. 1:6-2(f).

(continued)

(continued)

9

A-6335-04T3

November 14, 2006